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Select committee recommendations “would transform weak Information bill”

The Campaign for Freedom of Information warmly welcomed two select committee reports, published today, which separately call for the government’s draft Freedom of Information Bill to be substantially improved.[1]

One report by the House of Commons Select Committee on Public Administration [2] reported that the Bill’s right of access “is so hedged about with qualifications and exemptions that it will not cover a large amount of information which the public might want”.[3] It calls for the bill “to be based more firmly on clear rights and less on discretionary duties. This requires a rebalancing of the draft Bill in the direction of the right to know”.[4] The other by a special House of Lords committee[5] concluded: “To the extent that the draft Bill represents a move from an enforceable public right of access…to discretionary disclosure…it abandons the Freedom of Information principles expressed in the White Paper [of December 1997]”.[6]

The Campaign’s director, Maurice Frankel, said; “These reports call for the removal of some of the most objectionable elements of the draft bill. If acted upon, they would transform the bill from a weak measure likely to frustrate many of those seeking information into to a robust right of access, of the kind the government’s own white paper promised. They would create a right of access to substantial volumes of information which the bill permits to be withheld at whim, without evidence of harm – particularly information about policy formulation and investigations into accidents or misconduct. They would make it more difficult for authorities to make spurious commercial confidentiality claims. And, crucially, they agree that it is unacceptable to allow public authorities to decide for themselves whether information should be disclosed in the public interest, and call for the Information Commissioner to be given the power to order disclosure on these grounds.”

The Campaign particularly welcomed the recommendations that:

  • Final decisions on whether information should be disclosed in the public interest should be made by the Information Commissioner, not by the public authority.[7]
  • The blanket exemption for information relating to the “formulation or development of government policy” should be replaced by an exemption which required authorities to show that disclosure would cause harm and be subject to an explicit public interest override.[8]
  • The ‘right to pry’ (which allows authorities to insist on knowing why someone wants information) and the ‘right to gag’ (which allows them to disclose information to someone on condition it is not made public) should be dropped.[9]
  • The commercial confidentiality exemption should be tightened up, to apply only where disclosure would cause “substantial prejudice” to commercial interests, not just “prejudice” as at present.[10] A “substantial prejudice” test should also apply to exemptions dealing with international relations, the economy and relations between UK assemblies [11] and (in the case of the Lords report) those on law enforcement, defence and decision making as well.[12]
  • The blanket exemption for information relating to investigations carried out by public authorities should be dropped. [13]
  • Government departments should have to respond to requests within 20 working days, as under the code, not 40 days as the draft bill proposed. [14]
  • Three restrictive provisions should be dropped altogether. These are (i) the right to create new exemptions retrospectively, by Parliamentary order, to deal with requests that have been received but cannot be refused;[15] (ii) the “jigsaw” exemption, which allows harmless information to be withheld if, in combination with other confidential information it could cause harm;[16] (iii) the provision permitting authorities to withhold information which would show they were guilty of an offence. [17]

– ENDS –

Notes

1. The draft bill was published for public consultation in May 1999

2. ‘Freedom of Information Draft Bill’, Public Administration Committee, HC 570, 3rd Report Session 1998-99, HC 570-I

3. HC 570-I, Para. 29

4. HC 570-I, Para. 53

5. Report from the Select Committee Appointed to Consider the Draft Freedom of Information bill, House of Lords, Session 1998-99, HL 97

6. HL97, Para 21

7. HC 570, para. 44, HL 97 para. 21

8. HC 570 para. 90. The Lords committee differs, and accepts the case for a class exemption for policy formulation, para. 34

9. HC 570 para. 40, HL 97 para. 55

10. HC 570 para. 105, HL 97 para. 75

11. HC 570 para. 71

12. HL 97 Para. 32

13. HC 570 para. 82. The Lords committee calls for it to be narrowed, para. 66

14. HC 570 para. 128

15. HC 570 para. 112, HL 97 para. 33

16. HC 570 para. 116; the Lords report falls short of calling for this to be dropped altogether, but calls for it to be severely limited, so that it applies only to information whose disclosure, in combination with information reasonably likely to become accessible, would cause substantial prejudice to national security or defence. HL 97, para. 37

17. HC 570, para. 135, HL 97 para. 49

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